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Testimony Before the Senate Armed Services Committee on Military Commissions
As Delivered by Deputy Secretary of Defense Paul Wolfowitz, and William J. Haynes II, DoD General Counsel, DoD General Counsel, 325 Russell Senate Office Building, Washington, D.C. , Thursday, December 13, 2001

SEN. LEVIN: Good morning, everybody. The committee meets this morning to receive testimony from the Department of Defense on the department's plans to implement the president's military order of November 13th, 2001.

The president's military order relates to the detention, treatment and trial by military commissions of certain non-citizens in the war against terrorism. Secretary Rumsfeld has been designated by the president to develop orders and regulations to carry out that military order. Last week the attorney general referred many questions from the Judiciary Committee about rules and procedures for the military commissions to the Department of Defense.

The military order was issued by the president in the aftermath of and in response to the horrendous terrorist attacks on September 11th of this year. The Congress on September 14th authorized the use of all necessary and appropriate force against those nations, organizations or persons that planned, authorized, committed or aided those terrorist attacks or harbored such persons or organizations.

The United Nations Security Council, at the urging of the United States, reacted to those terrorist attacks by calling on all states to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks, and stresses, in the words of the United Nations resolution, that those responsible for aiding, supporting or harboring the perpetrators, organizers and sponsors of these acts will be held accountable.

On September 11th, the North Atlantic Council released a statement that, among other things, said: "Our message to the people of the United States is that we are with you. Our message to those who perpetrated these unspeakable crimes is equally clear: You will not get away with it." For the first time in its history, NATO invoked Article 5 of the Washington Treaty, which states that an armed attack on one or more of the allies in Europe or North America shall be considered an attack on them all.

Today, NATO AWACS aircraft are flying patrols over the United States to assist our armed forces in protecting the United States. Heads of government and state have visited the White House to express support for the United States and to pledge their cooperation to bring to justice the perpetrators, organizers and sponsors of the terrorist attacks. In light of the extraordinary support from the international community, support which I believe reflects a recognition of and appreciation for the United States' core values of democracy, freedom, tolerance and respect for due process, I believe that we should work to ensure that the manner in which the military commissions are carried out will not undercut either those core values or that international support.

We should also work to ensure that the way in which the military commissions operate does not jeopardize the standing of the United States to object to unfair conduct by military tribunals of other nations towards U.S. citizens; for example, the secret trials without access to state's evidence by Peruvian military courts.

Finally, we should work to ensure the military commissions will operate in a manner that doesn't cause other nations, including our allies, to refuse to extradite suspected terrorists to the United States because of the alleged lack of due process provided by such commissions.

I believe there is an appropriate role for military commissions. They have a long history going back, in one form or another, to George Washington. But they must be used wisely. They must provide for the basic rights for individuals tried before them so that we do not violate our fundamental values of fairness and due process, values that this nation has always stood for, and values for which American service men and women have risked their lives.

A careful reading of the president's military order raises a number of issues. The scope of overage is broad. Since it includes both past and future acts, there's no apparent time limit, and it has no definition of "terrorism." The order says that it applies not just to, quote, "violations of the laws of war," close quote, but also to violations of, quote, "other applicable laws," close quote.

The attorney general, in his testimony before the Judiciary Committee last week, said it would apply only to individuals who committed war crimes. White House Counsel Alberto Gonzales made a similar statement. But the president's military order reads otherwise.

There are also many questions about the conduct of the trials before the military commissions. Before I get into some of those questions, I want to clarify one matter.

A number of people, the White House counsel included, have equated military commissions with our system of military justice, including courts-martial. This committee has jurisdiction over the Uniformed Code of Military Justice, which is found in Title X of the United States Code. There is a difference between the high level of protections afforded our military personnel tried before courts- martial, where the evidentiary rules and burden of proof are virtually identical to those in our federal district courts, and the procedural protections for individuals tried before military commissions. Speaking of them in the same breath creates an enormous impression about both.

The United States Code itself provides that the principles of law and the rules of evidence that are generally recognized in the federal trial of criminal cases should apply to military commissions only so far as the president considers practicable. President Bush has already made an affirmative finding in his order that such is not practicable. But what he does require is that the rules and regulations issued by the secretary of Defense shall, quote, "at a minimum, provide for a full and fair trial." Close quote.

The secretary of Defense's task, then, is to establish the rules and procedures to ensure a full and fair trial. One of our objectives today is to explore what some of those rules and procedures should include. For instance, does it include the accused's right to present witnesses?

Does a full and fair trial provide for the presumption of innocence? Does it provide for the accused's rights to select his own counsel or to have assigned counsel, for those who cannot afford one? Does a full and fair trial necessitate a unanimous vote for the imposition of the death penalty? Under President Bush's military order, conviction and sentencing can occur on a two-thirds vote of a majority being present. In a five-person commission with a majority of three members present, that could require a vote of only two of the members of the commission. Can that be tightened by the secretary of Defense, should he determine to do so?

Does a full and fair trial provide for habeas corpus? The attorney general told the Judiciary Committee that habeas corpus would be available to persons tried by a military commission sitting in the United States. White House counsel Gonzales has written that the president's order, quote, "preserves judicial review in civilian courts," close quote. But the president's order itself states that, quote, "an individual shall not be privileged to seek any remedy or maintain any proceeding in any court of the United States or any state thereof," close quote. We need to hear how these seemingly conflicting positions are going to be resolved.

Some have suggested that it is aiding terrorists or diminishing our resolve or eroding national unity to discuss the need for fundamental due process in military tribunals. Quite the contrary. What this country is about what the president's announced intent to bring terrorists to justice was about are values of due process and justice.

I hope the secretary of Defense will welcome constructive discussion of the issues that he must grapple with in designing procedures for military commissions. Public discussion about how best to dispense justice can make the outcome stronger. It will help assure that military commissions will stand the test of time, so that we don't look back with regret at how we handled these critical issues in the crucible in which we find ourselves.

The bottom line for me is this: Military commissions have a role when our nation is attacked and civilians are deliberately targeted, in violation of the laws of war. If the rules adopted by the secretary of Defense provide for a fundamental level of due process, it will be recognized as such by the civilized nations of the world. These military commissions will not only dispense prompt results, but just results, which, in turn, will enhance the status of the United

States as the standard-bearer for democracy, respect for human rights and human liberty.

Senator Warner.

SEN. JOHN WARNER (R-VA): Thank you, Mr. Chairman. Your bottom line, I think, frames the issues before us. And I would only add that the president of the United States, who has brilliantly and courageously executed this military operation to date, will continue to see that his Cabinet officers, primarily the secretary of Defense, who is represented here today by a very distinguished deputy secretary of Defense and general counsel -- they will formulate those regulations in such as way as to preserve fundamental due process, to which you refer, and which is absolutely essential if we are to continue in this war against terrorism and have the vital support that is necessary of coalition nations joining in these efforts.

This is a clear example of the constitutional authority of a president of the United States in the time of war. It goes way back into the history of our nation. Many other presidents, faced with comparable situations, have exercised their constitutional right to establish these tribunals.

Now, the Department of Defense, thus far, is proceeding, in my judgment, very carefully, very thoroughly, to devise these regulations, consulting with other departments and agencies of the federal government, and reaching outside of government to receive the benefit of counsel from those who have had long careers in law and who have spent their lifetime ensuring the due process for others. I hope at some eventual time, the secretary of Defense can share with the public those many distinguished scholars and others who have worked with you in this challenge.

The use of the military commissions and court-martials (sic) are most widely accepted venues for enforcing violations of the law of war -- a body of law virtually unknown to the average citizen here in our nation but, nevertheless, well established in international law and within our own jurisprudence. The events of September 11th, that have killed some thousands of our innocent -- and I repeat, innocent -- American civilians, and many others from over 80 nations, were acts of war against the United States and against the whole civilized world.

United Nations has endorsed the United States' right to use military force in self-defense, NATO has, and Congress has authorized the use of force.

We are in a war, and we will follow through and conclude these military operations at some time in the indefinite future. But in the meantime, it is incumbent upon our president to begin to lay the foundation for bringing to the courts of justice those that are identified as perpetrators of these crimes.

Mr. Chairman, we are privileged to have on this committee several members of the Judiciary Committee of the United States Senate. That committee has done a good deal of work on this issue, four hearings. On our side we have Mr. Sessions, and I'm going to ask that my statement be incorporated in the record, and yield a few minutes to him; with my concluding remark that this nation is faced with perhaps the most serious challenge in contemporary America, to balance due process, freedom, civil liberties, all of those things we hold most dearly, against the need to bring to justice, in a sense of fairness, those who are identified as the perpetrators of this crime and series of crimes. We will achieve that, I'm confident.

So Mr. Sessions, if you'd take the balance of my time. Thank you for your work on this subject.

SEN. JEFF SESSIONS (R-AL): Thank you, Mr. Chairman -- Mr. Ranking Member. And I thank for your remarks and those of the chairman for his excellent remarks, because we're talking about some matters of real importance.

I thought it would be valuable, Senator Warner, that we recapitulate some of the things that have occurred already. There have been four hearings in the Judiciary Committee, one before the full Judiciary Committee, in which Assistant Attorney General Chertoff of the Criminal Division answered questions concerning all matters dealing with the nation's response to these terrorism attacks, including military commissions. Then we had a subcommittee meeting with Senator Schumer, and I'm the ranking member, and it dealt solely with the military commission.

I think we had a lot of extreme comments early on about what was right and legal and proper. I think after that hearing, all of us concluded that there was a firm constitutional and historical and legal basis for military commissions. And even liberal professors, such as Laurence Tribe and Cass Sunstein both affirmed their belief that a military commission is a legitimate way to deal with illegal combatants in a time of war.

Senator Feingold also had a hearing -- on issues relating to the terrorist attacks -- that I participated in. And then we had a full committee hearing of about four hours with the attorney general, in which he answered all kinds of questions dealing with this entire matter. I felt like after that, that many of the concerns had been allayed. Many of the fears that some people initially expressed had been satisfied and that the procedures that were ongoing, when clearly studied, were the kind of procedures we can be proud of.

So I think at this point, the military commission is legitimate. I think it's appropriate that the Department of Defense be working on the procedures to conduct those. The UCMJ that we authorized in this Congress specifically gives the president the power to set the procedures for a military commission, and ultimately, they will have to be fair. The Department of Defense will have to be sure these trials are conducted fairly. But I think we would do well to recognize that this Senate really isn't in a position to draft specific procedures for military trials under these circumstances. We should let the Defense Department do that and evaluate them as they go forward.

Thank you, Mr. Chairman.

SEN. LEVIN: Thank you, Senator Sessions.

Senator Kennedy, of course, is also on Judiciary, and, chatting with Senator Warner here, we thought it would be appropriate also for Senator Kennedy, should he desire to have a brief opening statement, as well -- and then we're going to go to our witnesses and then come back to eight-minute round of questions.

SEN. EDWARD KENNEDY (D-MA): Thank you. And first of all, I think any of us who are meeting today are once again mindful, as our two chairs have said, about thanking you, Mr. Secretary, and through you, the military forces of our country, that are doing such a superb job. And I think all Americans feel that way, and it's just one more indication of -- expression of that feeling.

Secondly, thank you very much for being here on this topic.

Just -- as a member of the Judiciary Committee, and now here on the Armed Services Committee, the two committees' interest in justice and also the pursuit of those that are violating our laws are best, I think, illustrated by this morning's announcement, where the decision by the Justice Department to go ahead with Zacarias Moussaoui and try him in a federal court -- that's in the Judiciary Committee -- military tribunals are here. We're talking about a person that is going to be charged with the kinds of crimes that threaten the lives of American citizens. That decision is a clear expression of the administration's about competency in the federal courts and where all the rights and protections will be accorded to the defendant in that.

We are now considering the military tribunals, and we're going to be interested in what protections are going to be there in terms of the -- those that will be under the military tribunals, and defining how the law -- how the administration is going to make the judgments between one and the other.

I think that this decision by the Justice Department is enormously significant, and at a time -- in your comments, I'd hope you would express your own views, whether you supported that decision and how you evaluated that decision, what the considerations were in your own mind about why that ought to have gone to the federal courts, as compared to going to the military courts.

I think these illustrations of the military tribunal, which will be testifying today -- the decision to try one of the leading terrorists in the federal court illustrates, at least, the challenges that were going to be faced.

And we're -- be enormously interested, as one who has prime interest and responsibility in both of these areas, to tell us your views about this.

Thank you, Mr. Chairman.

SEN. LEVIN: Thank you, Senator Kennedy.

And now, Secretary Wolfowitz, we turn to you. Thank you for coming. And again, we all join in Senator Kennedy's sentiments about the extraordinarily brilliant manner in which this matter has been handled militarily. We thank you. We thank the secretary, your staff, for your total commitment and focus on prevailing, and, of course, the men and women of our military for their superb, superb operations.

MR. WOLFOWITZ: Since thanks are due here, I think thanks are due to the committee and to the Congress for the great support they've given to the Defense Department over the years, and particularly in recent months in this war effort. And as everyone has indicated, I think most of all we as a nation are indebted to the brave men and women in uniform who have been conducting this operation brilliantly and bravely and, so far, quite successfully, although there's a lot more work to do.

SEN. LEVIN: Could you pull your mike just a little bit closer to you?

MR. WOLFOWITZ: Okay. Does that work?

Mr. Chairman, I'm not sure I've ever delivered a statement that is the testimony of the secretary of Defense as well as myself, but that is what I'm doing this morning. Secretary Rumsfeld had very much hoped to be here this morning, but unfortunately, he had an NSC meeting and was prevented from attending. He and I prepared this statement, which he had intended to deliver this morning and which I would now like to present to the committee. But I would like to have the record reflect that it is a statement from both the secretary and myself.

Also, I have with me the general counsel of the Department of Defense, Jim Haynes, who, unlike myself, is a lawyer and can answer some of your questions much better than I will be able to do.

Mr. Chairman, on September 11th, Americans found their nation under attack. Terrorists hijacked civilian airliners, turned them into missiles and used them to kill thousands of innocent Americans -- men, women and children -- as well as people from dozens of nations. Today, three months after the attack, the ruins of the World Trade towers are still burning and bodies are still being pulled from the wreckage. Over the weekend, the remains of 20 more were recovered -- five firefighters, two policemen, and a group that had been trapped in a stairwell as they tried to escape the collapsing tower. Their families will now be able to bury them, but many hundreds of families who lost loved ones, mothers and fathers, husbands and wives, sisters and brothers, sons and daughters, still have not been able to bury their dead, and possibly never will.

It is still difficult to fathom the enormity of what happened on September 11th. As time passes and the fires finally burn out, Americans will eventually recover from the shock and horror of what befell our nation that day. But those who are responsible for our national defense must not lose sight of the fact that these are not normal times. We have been attacked, we are at war, and we must take the steps necessary to defend our people and to protect them from further harm.

The September 11th attacks were acts of war. The people who planned and carried out these attacks are not common criminals; they are foreign aggressors, vicious enemies whose goal was and remains to kill as many innocent Americans as possible. And let there be no doubt: They will strike again unless we are able to stop them.

We have no greater responsibility as a nation than to stop these terrorists, to find them, to root them out and to prevent them from murdering more of our citizens. To accomplish that objective, the president is marshalling every tool at his disposal -- military, diplomatic, financial, economic. He is working to freeze the assets of terrorist leaders and organizations that sponsor and finance terror. He is working with foreign governments to shut down the terrorist networks that operate in dozens of countries across the world. And he has sent brave Americans to Afghanistan -- courageous soldiers, sailors, airmen and Marines who, at this moment, are risking their lives to stop the al Qaeda terrorist network and the Taliban that seek to kill our people.

This is not a law enforcement action; it is war. We seek to destroy or defeat our terrorist enemies so they cannot harm Americans. When coalition forces storm a Taliban compound or an al Qaeda safe house, they cannot ask for a search warrant. When they confront Taliban or al Qaeda or fighters in the caves and shadows where they hide, they are in combat. Their objective is to stop the terrorists and prevent them from continuing to threaten our country.

The U.S. military is doing this in Afghanistan, and they are doing it extremely well. But the terrorists who threaten us are not only in Afghanistan; they operate in dozens of countries, including the United States. They are and remain unlawful belligerents -- adversaries who attacked our nation in contravention of the rules of war. And the president has made it clear that we will hunt them down wherever they hide. When enemy forces are captured, wherever they are captured, they must then be dealt with. There are a number of tools at the country's disposal for doing so. One of those tools is the establishment of military war crimes commissions.

The president, as commander in chief, has issued a military order that would permit individual non-U.S. citizens to be tried by military commissions. As yet, he has not designated anyone to be tried by such a commission. He may do so; he may not.

To prepare for the possibility that he may do so, the Department of Defense is developing appropriate procedures for such commissions. We are in the process of developing those procedures. We are consulting a wide variety of individuals and experts inside and outside of government to discuss how such commissions should operate and how they have operated in the past. We are working to establish rules of procedure that will ensure, in the event the president decides to designate a non-U.S. citizen to be tried by a military commission -- and I would underscore that he has not yet designated anyone to be tried in this manner, and that it would only apply to non-U.S. citizens -- but should he decide to designate a non-U.S. citizen to be tried by a military commission, it will be handled in a measured, balanced, thoughtful way that reflects our country's values.

Military commissions have been used in times of war since the founding of this nation. George Washington used them during the Revolutionary War. Abraham Lincoln used them during the Civil War. President Franklin Roosevelt used them during World War II. During and following World War II, we did not bring German and Japanese war criminals to the United States for trial in civilian courts; we tried them by military commissions. In Germany, we prosecuted 1,672 individuals for war crimes before U.S. military commissions. Convictions were obtained in 1,416 cases. In Japan, we tried 996 suspected war criminals before military commissions, of which 856 were convicted. These conviction rates, you will note, are not out of line with normal, non-military commission outcomes; indeed, they are lower than the felony conviction rate in the U.S. federal courts last year.

When eight Nazi saboteurs landed on our coast in 1942, with the intention and purpose of destroying American industrial facilities, they were tried by military commission. Indeed, in that case, the Supreme Court upheld the constitutionality of military commissions. In the case of ex parte Quirin, the court ruled unanimously, in an 8 to zero decision, that the trial of the Nazi saboteurs by a military commission without a jury was indeed constitutional, declaring, in the court's words, "unlawful combatants are subject to punishment by military tribunals for acts which render their belligerency unlawful."

Further, the U.S. Congress also recognized the use of military commissions after World War II when it passed the Uniformed Code of Military Justice in 1950, which included statutory language preserving the jurisdiction of military commission.

So all three branches of the U.S. government have endorsed the use of military commissions.

Mr. Chairman, our ability to bring justice to foreign terrorists is critical to our ability to defend the country against future terrorist threats. Moreover, it is well established that a foreign national who is engaged in armed conflict against the United States has no constitutional claim to the rights and procedures that would apply to a domestic criminal prosecution.

Furthermore, there are a number of compelling reasons for using military commissions instead of civilian courts to try unlawful belligerents in times of war.

First, by using military commissions, we can better protect civilian judges, jurors and courts from terrorist threats and assure the security of the trial itself. Because of the ongoing threat from terrorists, the risks to jurors are of a kind that military officers are trained and prepared to confront, but that are not normally imposed on jurors in civilian trials. Indeed, the judge who handled the trial for the first World Trade Center attack, the 1993 attack, is still under 24-hour protection by federal marshals, and probably will be for the rest of his life.

It is also important to avoid the risk of terrorist incidents, reprisals or hostage-takings during an extended civilian trial. Moreover, appeals or petitions for habeas corpus could extend the process for years. Military commissions would permit speedy, secure, fair and flexible proceedings in a variety of locations that would make it possible to minimize these risks.

Second, federal rules of evidence often prevent the introduction of valid factual evidence for public policy reasons that have no application in a trial of a foreign terrorist. By contrast, military tribunals can permit more inclusive rules of evidence, a flexibility which could be critical in wartime, when it may be difficult, for example, to establish chains of custody for documents or to locate witnesses. Military commissions allow those judging the case to hear all probative evidence, including evidence obtained under conditions of war, evidence that could be critical to obtaining a conviction.

Third, military commissions can allow the use of classified information without endangering sources and methods. This point is critical. During the course of a civilian trial, prosecutors could be faced with a situation where, in order to secure a conviction, they would have to use classified information that would expose how the U.S. monitors terrorist activities and communications. They could be forced to allow terrorists to go free or to offer them lighter sentences in order to protect a source that is critical to our national security.

Do we really want to be in the position of choosing between a successful prosecution of an al Qaeda terrorist or revealing intelligence information which, if exposed, could reduce our ability to stop the next terrorist attack, at a cost of thousands more American lives? A military commission can permit us to avoid this dilemma. We can protect national security, including ongoing military operations in Afghanistan, while at the same time ensuring a full and fair trial for any individuals that might be designated by the president.

Again, Mr. Chairman, the president has not designated anyone so far to be tried by military commission. And we have not yet concluded or issued regulations or established rules of procedure. But we are at war with an enemy that has flagrantly violated the rules of war. They do not wear uniforms. They hide in caves abroad and among us here at home. They target civilians, innocent men, women and children of all races and religions. And they intend to attack us again, let there be no doubt. They are not common criminals, they are war criminals. We must, and we will, defend this country from them. Military tribunals are one of many instruments we may use to do so.

We are confident that we will develop a process that Americans will have confidence in and which is fully consistent with the principles of justice and fairness our country is known for throughout the world. We have the reputation as a nation for dealing fairly in these kinds of matters, and we will do so in this case.

We will bring justice to the terrorists and ensure that the American people can once again live their lives in freedom and without fear.

And Mr. Chairman, I believe this hearing and the views of this committee can be an important contribution to making sure that we achieve those goals, and we appreciate the opportunity to testify before you. Thank you.

SEN. LEVIN: Secretary Wolfowitz, thank you.

Mr. Haynes, do you have any additional statement?

MR. HAYNES: Just a brief one, Mr. Chairman. Chairman Levin, Senator Warner, it is a pleasure to be here again before your committee.

The president's military order to the secretary of Defense is as serious as any the president gives as commander in chief. The secretary is determined to be deliberate and careful in implementing the order. He has asked me to assist him in framing the issues, surfacing the relative weights of the different considerations that would go into it. And he has asked me to work with others to help bring those very important issues, many of which you highlighted in your opening statement, to his attention for his decision. That is a principal reason for me to be here today, and I'm pleased to be back.

SEN. LEVIN: Thank you both for your opening statements. They're very helpful indeed.

SEN. WARNER: Mr. Chairman, I just want to congratulate the deputy secretary, speaking on behalf of the president and the secretary of Defense, for an excellent, fair and balanced presentation. The bottom line is, the American people trust our president. And the question now, is the Congress going to trust our president to go forward exercising his constitutional authority, with really the input coming from the Congress, not to write the regs, but you will receive the recommendations that we wish to make and take them into consideration.

Thank you.

SEN. LEVIN: We'll have eight-minute rounds, as I mentioned. We will proceed with the usual early-bird approach.

We will proceed with the usual early-bird approach.

Secretary Wolfowitz, when the attorney general testified last week before the Senate Judiciary Committee, while on the whole he referred most of the details to the Department of Defense, on some specific issues he made statements that I'd like to ask you about and see whether or not you're in agreement with.

The attorney general was asked, since the order gives the president or the secretary of Defense the authority to make the final decision, whether or not that means that the secretary of Defense or the president could reverse an acquittal of somebody who is charged with a crime, because by the terms of the order, it could be read that way. The attorney general said that he's confident that that was not the intention of the order, and I'm wondering whether you agree with that.

MR. WOLFOWITZ: It's my understanding that was not the intention of the order. Do you want to add anything, counsel?

SEN. LEVIN: Thank you. The attorney general was asked whether he believed that there should be appellate procedures under the order other than the president and the secretary of Defense -- in other words, appellate procedures by an outside third party -- because the order of the president appears to preclude that.

The attorney general said that he believes that the Department of Defense, quote, "has the authority to develop appellate procedures under the order," closed quote. And I'm wondering whether you agree that you have the authority to establish appellate procedures outside of the chain of command, in other words, outside of the secretary and the president.

MR. WOLFOWITZ: Mr. Chairman, I'm going to ask the general counsel to address the issue of authority. But I believe that it's worth emphasizing very, very strongly here that we are proceeding very deliberately. It is nearly a month now since the president issued that order.

And as I believe everyone has observed, we have not yet -- he has not yet chosen to designate anyone for trial by those commissions. We are still working on the procedures. We are listening very carefully to a very wide range of views, some very distinguished outsiders. And I won't try to mention everyone, but to give you a sense of --

SEN. LEVIN: I wonder, though, whether you could just address the question, because we're limited in time.

MR. WOLFOWITZ: Okay.

SEN. LEVIN: Do you agree with the attorney general that --

MR. WOLFOWITZ: I believe we have the authority.

SEN. LEVIN: Pardon? I'm sorry, you do or do not.

MR. WOLFOWITZ: I believe we do.

MR. HAYNES: Mr. Chairman, the president's order specifically does provide for at least some review, because the president reserves the right to review the decision of the tribunal or designate the secretary of Defense to do so. The order also provides that the record will be reviewed, the record and the proceedings will be reviewed. So another form of that could be in the implementation of that aspect of the president's military order.

If I may go back to the first question that you had about reversal of acquittals, the question, as stated, supposes a particular form of decision-making by the commission or by the military war crimes tribunal. So the actual procedure for reviewing decisions of the commission are not yet formed.

SEN. LEVIN: I understand that, but I'm wondering whether you agree with the attorney general that the department does have authority to develop appellate procedures under the order, outside of the review by the secretary of Defense or the president. Have you resolved that issue yet?

MR. HAYNES: We have not resolved the particular form, but the --

SEN. LEVIN: Okay.

MR. HAYNES: That's the short answer.

SEN. LEVIN: The attorney general told the Judiciary Committee that the tribunals would be subject to habeas corpus review to the same extent as in the Quirin case, that being for review of the constitutionality of the tribunal and whether the defendants were legally subject to the tribunal. But the president's order itself is very explicit. It says that "The individual charged shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or have any such remedy or proceeding sought on the individual's behalf in any court of the United States or any state thereof."

There seems to be a direct inconsistency here as to whether or not there is habeas corpus review provided between what the attorney general said, and indeed what I believe the counsel for the president said, and between the order itself. So my question is, do you agree with the attorney general? Was the attorney general right, or does the order govern the question of habeas corpus review?

MR. HAYNES: I agree with the attorney general. The actual order from the president is identical in that respect to President Roosevelt's order. The Supreme Court in that case determined that it had jurisdiction to review the case under those circumstances, and there's no intention to change that --

SEN. LEVIN: All right, thank you.

MR. HAYNES: -- in this case.

SEN. LEVIN: The attorney general was asked whether or not only war crimes would be tried by the tribunals, because the order states that the jurisdiction of the tribunals go beyond war crimes, in the words of the order, to "other applicable laws." And just to read a little bit more context, that "Individuals that are detained, when tried, will be tried for violations of the laws of war and other applicable laws." But the attorney general said that only war crimes would be tried by the tribunals, and I'm wondering whether you agree with the attorney general.

MR. HAYNES: It's my understanding that the president intends to use this tool, if he does do it, consistent with the tradition of the use of military commissions, which traditionally has been for that purpose, to try war crimes under the common law of war.

SEN. LEVIN: And only war crimes.

MR. HAYNES: That's my understanding, yes, sir.

SEN. LEVIN: Let me go over with you now some of the possible elements of a full and fair hearing. I'd like to just hear from you whether or not you think these elements are part of a full and fair hearing. First, the presumption of innocence. Will there be a presumption of innocence?

MR. HAYNES: Senator Levin, the secretary has not made decisions about the individual aspects of the proceedings. There will be some basic procedures that will have to be balanced in context of all the other proceedings. Those elements of due process that are in accordance with the tradition of the use of military commissions will be considered and ultimately decided by the secretary of Defense.

SEN. LEVIN: In other words, there is still a question as to whether or not, for instance, there's a right to counsel or there's a presumption of innocence or being informed of the charges against you. Are those still unresolved questions?

MR. HAYNES: Well, no, sir. The president's order says that there shall be a full and fair trial. It clearly says that the accused will have counsel. What is a full and fair trial may involve a number of different issues, but clearly that is a direct order from the president, and I'm confident that there will be one.

SEN. LEVIN: But I'm trying to just conclude by finding out whether or not there's some question as to whether or not there is the presumption of innocence or the right to cross-examine witnesses or being informed of the charges against you in a language that you understand, whether or not there's still a question as to whether or not those are guaranteed by the full-and-fair-trial requirement. Is there still a question about those kind of fundamental issues?

MR. HAYNES: Until the secretary makes a decision about the entire bundle of procedures that will be applied, there will be -- I would like to reserve the form of that, as opposed to answering specific questions about specific aspects.

SEN. LEVIN: Thank you. Senator Warner.

SEN. WARNER: Mr. Chairman, I think we should make it clear that, on the announcement by the president of his intention to exercise his power under the Constitution to establish these tribunals, you and I discussed the advisability of this hearing and jointly decided that it was definitely a responsibility of this committee, and here we are today.

But in the interim, we consulted with Secretary Rumsfeld, as well as the deputy secretary and others, and the Department of Defense made it eminently clear to the committee that they were in the formative stages of compiling the sets of regulations which -- (inaudible) -- promulgated and that, therefore, even though we're going ahead today, we're likely to receive responses much like the ones we've just received, where they're somewhat inconclusive in response to your very good questions.

So I appreciate that, understand that. And we must accept the fact that you're, say, halfway, midway in the process, and that this committee will eventually have another hearing, at which time we'll get more specific details about what you intend to put into the regulations. So, therefore, I want to spend some time on procedure as to how you're going about this task given by the president to the secretary of Defense.

Consultation. We're having our hearing of this committee. The Committee of Judiciary of the Senate has had its hearing. Are there other means by which you intend to consult Congress? And I presume, although it wasn't directly in your statement, that you will take into consideration the recommendations not only of the committee of jurisdiction in the Congress, this and the Judiciary Committee, but individual members. By what process do you hope to achieve that? Because I think it's important that all 100 members of the Senate feel they've had a voice, if they so desire to exercise it, in the formulation of these regulations.

MR. WOLFOWITZ: The secretary has made it clear, from the time he was assigned this responsibility, that he wanted to proceed very deliberately and very carefully in thinking through all of these issues. He is not a lawyer, but he's determined to get all the best possible range of views that he can.

As I indicated earlier, we're consulting with a wide range of individuals inside and outside the government. We're consulting in a more institutional way with the other branches of government that have views, including the Department of Justice, Department of State. We welcome the views of the Senate and the House, either institutionally or individually.

And our principal mechanism for getting these views is our general counsel that Mr. Haynes (will speak about in ?) just a moment. But the procedure really is to try to identify all of the issues, including the ones that Senator Levin just raised, and to try to get a sense of what the range of recommendations would be, what the range of precedents would be, and ultimately to come to some conclusion.

MR. HAYNES: I'd like to echo the deputy secretary's comments. I'd point out that the president issued his order almost a month ago, November 13th. And in that intervening period, the Judiciary Committee has had four meetings, as I understand it. We've had a number of conversations with individual members of Congress and senators, and I solicit your views on a continuing basis.

You can be sure that the views expressed directly and in hearings are being absorbed, factored in, considered, and are deeply appreciated.

SEN. WARNER: Well, I think it's important that that be placed in today's record, because I've had the opportunity to consult with both of you several times on this and I want other members of Congress to feel they, too, because this is a very, very important threshold in our contemporary history of this country, and we want to see that it's carried out with the proper exercise of the authority of the president under the Constitution as well as the Congress.

Now, let's turn to the Department of Justice. It might well be that in the course of these procedures that the lawyers who are defending or otherwise interested in the tribunals will go to the Department of Justice and perhaps institute proceedings in the federal court system challenging certain aspects of the tribunal process.

Therefore, it seems to me that we should have greater clarification, the degree to which the attorney general and his colleagues are being consulted on this, because they may well be the ones in the federal system to meet the challenges of the tribunal system in the federal courts.

MR. HAYNES: Senator, we have had some informal discussions with the Department of Justice and intend to be consulting them on a -- on an ongoing basis.

SEN. WARNER: Why do you rest on the "informal"? I mean, how do you distinguish between formal and informal? Is it a casual call? Or are you saying, "Now, Mr. Attorney General, this is what we have"? Are you going to submit to him before making public your regulations? It seems to me he's entrusted -- well -- under the Constitution and otherwise, he's the president's chief law enforcement officer. Now, I don't suggest in any way that there be any infringement on the right of the secretary of defense to conduct these on behalf -- tribunals on behalf of the president -- but I think it's important that it be more than just informal conversation, that we should have some formality to this process with the Justice Department.

MR. HAYNES: Senator, I did not mean to preclude that. What I meant to -- what I -- elaborate on at this time is to tell you a little bit about the process that we are employing. This is a military order. The secretary is charged with implementing it. What we are doing within the department is, in short, I have convened a panel of the senior lawyers in the department, including those who are charged with administering the military justice system which, as Senator Levin points out, in its usual form is very different from a military commission. Nevertheless, they have very important views and experiences and institutional records and understandings to draw on. In order to surface and consider carefully the issues that Senator Levin raised as well as some other issues -- in order to ensure that we get an appropriate cast to this implementation, as opposed to recreating the Article 3 process, that is not the intention of the president to do. When I said informal consultations with the Department of Justice, there will be more. Certainly they -- the Department of Justice has a deep well of expertise on which to draw, and they will, of course, be those charged with defending these procedures if and when they are challenged by any --

SEN. WARNER: Well, all right. You're getting a little long- winded here. You're going to submit to the Department of Justice before finalization for their review, whether you call it formal or informal, this set of regulations --

MR. HAYNES: Yes sir, we will --

SEN. WARNER: Am I correct in that, because I, you know, I've been around here a little while in this man's government and woman's government. I have seen frictions between the departments of the government, and that works against the best interests of our president. We don't want that to arise in this instance.

And lastly, I think it very wisely that you have gone to the outside for a series of experts, and you have shared with me some details on that. Let's make it clear that we just haven't gone to Republicans because this is a Republican administration. It's across- the-board. It hasn't got a thing to do with politics, in my judgment. And you have sought out and are receiving the advice and counsel of a wide range of very well recognized and respected former jurists, practicing lawyers, professors and the like. I would just like to have that on the record, Mr. Secretary.

MR. WOLFOWITZ: Absolutely clear, Senator. We were consulting a wide range of people, and I don't want, by mentioning names, to suggest that these are the only people we're talking to, but just to give you some idea of the caliber of people that the secretary has met with or that he's had general counsel meet with -- people like former Secretary of Transportation Bill Coleman, former White House General Counsel Lloyd Cutler, a democrat, former Attorney General Griffin Bell, former FBI director and a judge, William Webster. It's people of that caliber, and it's, I think, representative of a very wide range of political opinions.

SEN. WARNER: I thank you, Mr. Secretary. I'm hopeful that you would put that out to show politics is playing no role whatsoever as we formulate these regulations. (Inaudible) -- Mr. Chairman.

SEN. LEVIN: Thank you very much, Senator Warner. I'm now going to call on Senator Kennedy. There's a vote on. Many of us are going to want to go and vote and come back. The list of the order of recognition is here. I won't read everybody, but Senator Inhofe, you would be next, but you --

SEN. JAMES INHOFE (R-OK): I'd rather wait --

SEN. LEVIN: -- have to vote. So I'm not sure whether you want to try to do that. But I'm going to turn this now to Senator Kennedy. He's next. If you're here when he's done with his eight-minute round, you would be next. If not, when you get back, you should then be recognized.

SEN. INHOFE: Mr. Chairman, I'm going to stay. I'll be here.

SEN. EDWARD KENNEDY (D-MA): Thank you, Mr. Chairman, and thank you, Mr. Secretary and Mr. Haynes for the indication that you're welcoming to getting some input as you're working forward and developing this process. You know, I think it's a -- something that we should try and engage with you on.

Let me go first to the -- one of the areas that I'm concerned about, and that's about how other countries will see military tribunals, and whether they will look at this as a double standard by the United States. Over the years, our government has actively supported the rule of law internationally and we've consistently opposed the military tribunals in other nations because of their failure to provide the adequate due process. And the Department of State's most recent human rights report last February said the following about the use of military courts in Peru in the case of Laurie Berenson, an American who was tried for terrorism by a secret military tribunal. Proceedings in these military courts do not meet internationally accepted standards for openness, fairness, due process. It said that Ms. Berenson in particular did not receive sufficient guarantees of due process.

So, given the -- and this is the criticism that the United States has made about tribunals. We have done that with regards, in recent years, Burma, China, Colombia, Egypt, Malaysia, Nigeria, Peru, Russia, the Sudan -- the list -- Turkey -- the list goes on and it goes on. Given the broad scope of the initial military order, even if it's narrowed now, isn't there a danger that it will allow countries to justify secret military tribunals that avoid even the basic due process safeguards? I mean, what is the administration doing to see that America's credibility in criticizing these secret military tribunals in other countries will not be undermined by the military order.

MR. WOLFOWITZ: Senator, I think that's one of the reasons why we want to work out very carefully the kinds of procedures that will make the judgements of any military tribunal, any military commission that we establish meet a full standard of fairness. We have criticized, for example, the tribunals in Peru, for violations of fundamental principles of due process. And I think when, if we have to judge individuals before a U.S. military tribunal, I think we will be setting a standard by which other countries will have to be judged, and I think it will reinforce our case in objection to the kinds of abuses that you refer to.

SEN. KENNEDY: Well, I think that's right. I think the concern is now with the full and fair hearing, whether we've already opened the door to other countries. Obviously, they will be influenced by the final recommendations, but has the State Department, were they involved in the initial declaration or statement about the tribunals themselves? Have they had any input? Has Secretary Powell expressed any views that you know?

MR. WOLFOWITZ: We are consulting with them also, and we are clearly interested in their views. The point that Chairman Levin made that -- how these tribunals are viewed by other countries may affect their willingness to turn individuals over to us makes this, among other reasons, a matter of international significance.

SEN. KENNEDY: The chairman mentioned some of these protections, but I want to just come back to them because I do think they are -- define whether these are going to be -- will meet the standards of adequate due process, about the presumption of innocence, beyond a reasonable doubt, the proof beyond a reasonable doubt, of representation by independent and effective counsel, the right to examine and challenge evidence offered by the prosecution, the right to present evidence of innocence, right to cross-examine adverse witnesses and to offer witnesses, reasonable rules of evidence, and the appellate review of convictions.

Now, these protections are instituted because they, in our standard of justice, because they help identify the guilty and also to protect the innocent. They're not luxuries. They are essential aspects of our who process of justice. And, I'm just interested in what you might be able to say -- or if you can't say at this time and when you will be able to tell us -- which ones will be in and which ones will be out, in terms of the order. This is against a background, a statement where the, I think, Secretary Rumsfeld a few weeks ago had indicated that the procedures may very well be established on the basis of who the individual is and who might be actually being tried. I'm interested to come back to these items. They -- they -- and hearing from you which -- when we will know whether these kinds of protections will be included in the order, or when they will be -- or whether they will not be -- and when we might -- when we might know that.

MR. HAYNES: Senator, neither the president nor the secretary has indicated a deadline for when he or they want these rules to be put into effect. But let me just make one observation about your list, which is an important list. As you might imagine, and I'm sure you know, the method by which any one of those principles might be implemented can vary. One of the reasons that the president chose to create this option for himself, this additional tool in the war on terrorism, is to recognize that this is an extraordinarily different risk than we normally take, and to recognize that in a war, law enforcement is not the principle aim, it's winning the war. Now, that doesn't mean that it comes at the expense of fairness or the American ideals or principles of justice. It doesn't come at that expense. But take the rules of evidence, for example. What the secretary of defense will do, and what the president has already done, is maximize the ability to find the truth. The standard of evidence spelled out in the president's military order is to admit that evidence which is probative to a reasonable person. That is different --

SEN. KENNEDY: Well, I don't want to, you know, interrupt you here, but I do -- there's another area that seems to be fairly subjective. I don't -- my own sense is these are not luxuries which we sort of tolerate when times are good. I mean, they are essential aspects of a due process system. And, you know, we want to try, and we will -- I hear your answer that you're not prepared to make these recommendations now but they will be forthcoming. Obviously, they'll have to before the military tribunals are established.

I'd like to get to what I addressed the secretary just in my opening comment about the decision to try Zacarias Moussaoui in the federal district court about the considerations. Mr. Wolfowitz, if you would be good enough to tell us what were the considerations in making the decisions to proceed in the federal courts as opposed to a military tribunal.

MR. WOLFOWITZ: To the best of my knowledge, that was a decision made by the Justice Department.

SEN. KENNEDY: You weren't involved in this?

MR. WOLFOWITZ: I was not personally. I don't believe we were as a department either, were we?

MR. HAYNES: No, we were not involved.

SEN. KENNEDY: Do you have a view, Mr. Secretary, on that?

MR. WOLFOWITZ: No, I don't. I am -- they obviously have the evidence that they believe gives them a case for going to trial, and I'm not aware -- and I would have to know the details to have a view.

SEN. KENNEDY: My time is up.

SEN. INHOFE: Thank you, Mr. Chairman. I think some of the rest of them will be back, and I'm not going to take all of my time, because we do have a vote that's on. But let me just ask Mr. Haynes something that was alluded to briefly by Secretary Wolfowitz. During the judiciary hearing when Attorney General Ashcroft was asked some questions, he said that not only would the U.S. Supreme Court review whatever's been done, but he believes that the issue resolved in the courts in 1942 decision, referring to that decision where the eight suspected German saboteurs were brought to justice; six of them were executed. The question I would have would be a legal question. Legally speaking, between the court's decision during a declared state of war in 1942 and its application to our current law on terrorism -- or war on terrorism -- is there a legal distinction or difference?

MR. HAYNES: I do not believe that there is a difference that matters here. We are clearly in a state of war, and we are very confident that the president's order --

SEN. INHOFE: All right. Let me ask another question to either one of you. I've been concerned about one thing, and that is that we know that many of the -- many people will be arrested in conjunction with September the 11th by governments of foreign countries. And when that happens, we are concerned about extradition. We're concerned about getting them over here. And I know that there is a concern that some of these countries, such as, I believe it is Spain, where they apprehended some individuals, they're reluctant to extradite to this country because of the system of justice that they might -- believe that we're going to be using. Is there some kind of a legislative fix, Secretary Wolfowitz, that could make them less reluctant to allow them to come back here for justice?

MR. WOLFOWITZ: Senator, I think the principle issue that we're going to have with those countries, as we have with Spain, is over the issue of the death penalty. And I think in every one of these cases, we will have to, if there's an issue, we'll have to negotiate. The president is not required to submit anyone to a military tribunal. And if that were to become an obstacle to extraditing somebody that was important to us, I'm sure that would be something he would take into account. I think -- my feeling would be it's much better to leave him the flexibility than to try, in some way --

SEN. INHOFE: And that flexibility should, I believe, anyway, encourage them to allow us to have access to those witnesses. At least I hope that's the case.

MR. WOLFOWITZ: I would hope so. And it seems to me, given the horror of what took place on September 11th -- let's forget about military tribunals -- that it seems to me all the -- if someone's going to be tried by an American civil court, it is for something that, it seems to me, we're fully entitled to have custody of him.

SEN. INHOFE: Let me just share a personal experience with you. I almost didn't come today, Mr. Secretary, because I've already made up my mind; I did so a long time ago. But many years ago, when I was in the United States Army, I had that job. I was a lowly clerk in the military courts.

And as this discussion has come forward and all these concerns about beyond reasonable doubt, presumption of innocence, the two- thirds versus unanimity in terms of the death penalty, and rights and protections of these terrorists, I'm having a very hard time with that, because I remember so vividly sitting in the courtrooms of military justice many years ago as an Army clerk, looking into these faces of these men and women, our military people who were brought to justice.

I don't recall one time, not one time during that time that I spent in those military courts, hearing or remembering, recalling any of our soldiers who were being administered justice at that time complaining about the system of justice that they were receiving.

And I have very strong feelings that if that system of justice was good enough for our own troops, as it's good enough for our own troops today, it's ludicrous to believe that that system is not good enough for a terrorist. And so I have no problem, and I come with that prejudice from my past experience in military courts, and I hope we'll be able to get on with it.

I guess I'm the chairman, so I'll yield to Senator Allard.

SEN. WAYNE ALLARD (R-CO): Thank you for yielding. Secretary Wolfowitz, I want to compliment you on your statement. I think it was a very good statement. You pointed out that a military commission, trial by military commission, is not anything new. George Washington used it, and right up to current times it's been in use, that it's been endorsed by all three branches of government. I think that's impressive.

I also listened very carefully to your reasons as to why you felt like we needed to go to a military tribunal. I felt that two of them were very clear and easy to understand. The first one you mentioned was to better protect our civilian judges and jurors from threats from terrorists. I think that's easy to understand.

The third one you mentioned was that they allow the use of classified information. I think we all understand how many times our sources get exposed perhaps in a public trial, put them at risk, and we lose them. They either get killed or they get disclosed so they're of no use to us anymore for an intelligence-gathering purpose.

The second is you talked about the federal rules of evidence often prevent the introduction of valid factual evidence for public- policy reasons. I've tried to think in my own mind where that might apply, and I'd like to have some help.

One area that I thought it could apply, for example, would be in a Miranda decision. Police officers or anybody that's making an arrest carry a little card and properly read the rights to whoever is being arrested. In this particular case, we frequently have arrests being done by somebody in the military. They're a military officer or somebody -- men or women serving in the military. Certainly they're not trained in the Miranda decision, and in a practical sense would never be applied on the field of battle, perhaps not even here in this country.

We have somebody in the National Guard, for example. I could visualize an example on an airport where National Guard -- somebody may walk on with a strapped body bomb or something like that. They immediately put him under some kind of arrest or whatever. They're not going to read them their Miranda rights. And I could see where perhaps chain of evidence would be difficult to apply.

And I assume these are the kind of situations, when you're talking about where you can actually -- technically they would get off in a civilian court or regular judicial courts, but certainly wouldn't apply in a military court. I'd like to have you comment on those examples. And then also are there other examples that could be referred to as to why it wouldn't be appropriate to try them in a regular court of law?

MR. WOLFOWITZ: I think -- I mean, another sort of example might be we have exclusionary rules to basically make sure that our law enforcement people don't undertake unreasonable search-and-seizure procedures. And therefore, if evidence is collected in violation of one of those rules, it can't be introduced.

But, I mean, imagine if a foreign terrorist were sneaking into the United States with a trunkload of anthrax in the back of the car and the policeman unreasonably opened the trunk and found it. I don't think we'd want that evidence excluded in a trial, and that might be a reason why you'd consider a different criminal procedure.

But let me go to something even more fundamental. I mean, you're absolutely right that we don't train our special forces in Miranda rules. But it isn't only that they're not trained to do it -- and this comes to the fundamental point. They are trained to do the opposite. They are trained to take these people and to question them and to get as much information as quickly as possible because it is part of the defense of the United States.

The information that the people they arrest know about may help us to catch other terrorists, may help us to prevent other terrorist incidents. And therefore, the last thing we would want is to be picking up al Qaeda terrorists in Afghanistan today and reading them their Miranda rights. We want them to tell us everything they know.

Now, are we going to say, after they've told us all of that, it can't be introduced in a trial? What we're trying to accomplish here is two goals, and I think we can accomplish both of them. One is the defense of the United States and the second is full and fair trial. But the defense of the United States is fundamental in all of this.

And I would add one other thing. I believe the existence of this procedure, the possibility of military commissions, even without anyone having been turned over, even without these procedures having been specified, is something of a deterrent to people, for example, sneaking into the United States thinking -- and there's some evidence that, among many things the terrorists have studied about how to operate in this country, our rules of civil procedure are one of the things they've studied -- to put them on notice that you may be in a completely different process. Don't count on Miranda rights if you're arrested if you're a foreign terrorist sneaking into the United States.

SEN. ALLARD: And you know that they have studied our civil procedure because of -- at least publicly what I've seen is the disclosure of a lot of their procedure manuals, and they specifically talk about how they can avoid prosecution perhaps using our own civil courts. Is that correct?

MR. WOLFOWITZ: That's my understanding. I haven't actually seen those manuals, but I've heard about them, yes, sir.

SEN. ALLARD: Okay. If you go into a trial by military commission, who provides the defense counsel?

MR. WOLFOWITZ: I'll turn to my lawyer, but I think that's one of the questions we're looking at.

MR. HAYNES: That is one of the questions we're looking at. The president's order provides that they shall be afforded counsel. And one would expect that we would provide military counsel for them, as this is a military proceeding. But, as I said to Senator Kennedy earlier, there are many different possible permutations of that procedure and that remains to be determined.

I might add, to your first question also, to the deputy secretary's comments, there are other types of evidence that might otherwise be excluded in a normal criminal proceeding in a U.S. federal court that nevertheless would be valuable in weighing the facts; in order to get at the truth, in other words; for example, remote testimony, affidavits, recorded testimony. There may be witnesses who, for very good reasons, can't be identified.

Now, in a normal proceeding, those might not be allowed in at all, for good reasons, for reasons that ensure that we have a fair process that works for another 200-some-odd years that the country has been working. Those are prophylactic reasons, reasons that we have decided are good for the overall administration of justice on an ongoing basis that may not have any application in this context; a war that we hope is not a long one, although we fear that it is. But there may be evidence like that that should be considered and will have to be weighed based on the value of it as determined by the triers of fact.

SEN. ALLARD: When you're making -- if we've made arrests or has -- I guess we'll just call it arrests, just to make it simple, but if you made arrests in a foreign country, what are your thoughts on the military tribunal? Now, this is non-citizens that you're talking about. These aren't American citizens. I think that ought to be clarified for the record. So if you have a non-citizen arrested in a foreign country, then the thought is that the military commission or tribunal would probably not be conducted in this country. Is that correct?

MR. WOLFOWITZ: Sorry to keep giving you the same answer, but that is again one of the issues that clearly remains open and might be decided depending on the individual case as well. I think it depends on what foreign country we find them in and what the options are for trial. But they would certainly not necessarily have to be brought back here for trial.

As I noted in my opening testimony, the very large number of German and Japanese that were tried before military commissions at the end of World War II were obviously not tried in this country.

SEN. ALLARD: Mr. Chairman --

MR. WOLFOWITZ: I appreciate, by the way, your -- I mean, one can't say it often enough; we say it over and over again. These commissions are only for non-citizens who are accused of terrorist acts against the United States.

SEN. ALLARD: I appreciate you clarifying that. That's been my understanding that it would apply only to non-citizens. Mr. Chairman -- I guess Senator Lieberman is acting as chair -- I see that my time has expired.

SEN. LIEBERMAN: Thank you, Senator Allard. Senator Reed.

SEN. JACK REED (D-RI): Thank you very much, Senator. Thank you, Mr. Secretary and Mr. Haynes, for your testimony this morning. At this juncture, it appears that there is the constitutional right to conduct these tribunals. Our issue is making sure we get that right correct, appropriate procedures in place, so that there's both procedural fairness and substantive fairness.

Let me ask a few questions. I'm going to try to divide up the legal questions to Mr. Haynes, the policy questions for the secretary. Mr. Haynes, in response to Chairman Levin, you indicated, or at least implied that there would be a right of habeas corpus review under the Quirin case. But there was a subsequent case in which the Supreme Court decided that an alien outside the United States did not necessarily have the right to habeas corpus review, and that was Johnson verse Eisentrager. Are you aware of that case? And in what way will that inform your decision about the process of review?

MR. HAYNES: Perhaps I wasn't as precise as I should have been. What I was -- what I was responding to, or thought I was responding to, was trial in the United States. And I stand corrected if I misspoke earlier.

SEN. REED: Well, it's mostly likely that in the most controversial cases, the individuals will not be returned to the United States. And in that case, your view would be that there would be no right to a writ of habeas corpus.

MR. HAYNES: That's my view.

SEN. REED: That, I would assume, would put additional emphasis on other rights of appeal within the Department of Defense. Is that a fair deduction? Or, would you conclude at this point that if someone's tried overseas, there will be absolutely no right to appeal the verdict of a court?

MR. HAYNES: Well, again, the secretary hasn't decided on what the procedures will say yet. The order itself does include within it a review above the tribunal itself. So, there will be automatically at least that appeal. What additional procedures the secretary decides to employ remain to be seen.

SEN. REED: Again, I don't want to keep emphasizing this, but it's a fundamental right, habeas corpus. It's a right which the court recognizes is available to someone tried by a military tribunal within the United States, but simply a decision administratively not to try the person in the United States could render that right to habeas corpus moot. So, it seems to me that this is an issue that you have to devote yourself to very seriously in terms of some procedures to review cases.

MR. HAYNES: We are being very serious. But I point out that we are talking about non-U.S. -- in your hypothetical -- non-U.S. citizens outside the United States. The Constitution does not give those individuals anywhere near the rights that U.S. citizens have.

SEN. REED: I'm not arguing with you, but I'm -- you have within the authority under this law to bring individuals to the United States for trial, which would trigger habeas corpus review, or keep them outside the United States. I think you have to be very careful in your procedures so that it doesn't appear to be an arbitrary denial of a right which would be available to the alien if he was tried in the United States. Is that a fair point?

MR. HAYNES: I think your point that we should be serious, and we are, and we would solicit more views from you as to this.

SEN. REED: Let me ask another question, which, in the order, page five, it talks about the prosecution conducted by attorneys designated by the secretary of defense in conduct of defense by attorneys for the individual. Do you contemplate -- and you might have covered this in your previous questioning -- that the individual may select the attorney of his choice, or her choice?

MR. HAYNES: It may be that the secretary decides to address the right to counsel in a number of different ways. And one option could be to provide military counsel or other counsel to them. The extent of choice remains to be seen. The secretary will have to consider what qualifications are going to be important in order to provide effective counsel. This is an important and fundamental tenet of our American system. And whatever counsel is provided, will be competent and a strong advocate, and qualified in all respects, including the need to protect information and --

SEN. REED: Well, there are -- there are simple ways to do that. The first to establish general criteria. They must be a member of a bar in a jurisdiction of the United States, et cetera, et cetera, et cetera. The other way is to specifically reject suggestions by the defendant of who would represent the defendant, even though they meet this criteria. Do you contemplate that the secretary of defense would deny individual choices by a defendant of defense counsel that is otherwise qualified?

MR. HAYNES: I could imagine some circumstances where counsel chosen by the defendant might not be appropriate under the circumstances. So, yes, I can imagine that circumstance.

SEN. REED: And that decision would be made by the secretary of defense?

MR. HAYNES: In the implementation of the procedures implementing the order, the secretary will include rules about qualifications of counsel, both defense and prosecution.

SEN. REED: Well, it's quite clear, the order says that the prosecution attorney will be designated by the secretary of defense. But what you're suggesting by your comment is that the order should be further read to imply that the defense counsel might also be selected by defense -- the secretary of defense.

MR. HAYNES: There is another provision of the order that I can give you later if you like that says the secretary shall prescribe rules for the qualifications of counsel, both prosecution and defense.

SEN. REED: What level of rank do you contemplate the military judges to be?

MR. HAYNES: That's not been determined. This would be -- this would clearly be an important factor to consider. The qualifications of the commission members or judges, as you say, is certainly very important. In the past, it has ranged, depending on the level of the offense charged, the quantity of the cases, the individual accused. And I could imagine a whole range of possibilities.

SEN. REED: In a technical sense, the convening authority would be the secretary of defense? The secretary of defense would choose the judges?

MR. HAYNES: One of the issues is whether the secretary would make that determination himself, or whether he might identify a different, subordinate appointing authority. That has been done in different ways in different times over the years as well. There might be some utility to that.

SEN. REED: Let me ask another more general question, is that it's my understanding that Bin Laden has been indicted in a federal court in New York for the bombings of our embassies. Yet as I read the other, the president's order would essentially disregard any existing indictments by federal courts, and vest exclusive jurisdiction in these military tribunals for those individuals that he has identified as being subject to this law. Is that a correct understanding?

MR. HAYNES: I don't think so. I don't think that the order is intended to divest the Article 3 courts of jurisdiction. It is a separate and concurrent option for trial under these cases. And of course, it would require the secretary -- excuse me, the president -- to make a specific written determination in the case of Bin Laden, as you say --

SEN. REED: But that raises the question of competitive venues for jurisdictions for this trial, at least in the case of Bin Laden. An indictment which is pending in a federal court, an Article 3 court in the United States, verses the president's decisions, unilaterally under this order, to essentially ignore the indictment in the federal court. I think it's a real issue. I don't have an answer, but I think it's a real issue.

MR. HAYNES: Well, it's not an unusual circumstance. For example, one could be indicted in state court and federal court at the same time. The fact that there are different potential forums for a trial or adjudication is not -- is not problematic.

SEN. REED: I -- and again, my time's expired, but just one final point, and I'm a good enough lawyer to know I don't know the answer --

MR. HAYNES: Makes two of us.

SEN. REED: As I understand it, if there's no agreement between the state court and the federal court, both have at least the authority to conduct the trials. I mean, perhaps I'm wrong. Thank you.

SEN. LEVIN: Thank you very much. Senator Sessions.

SEN. JEFFREY SESSIONS (R-AL): Thank you, Mr. Chairman. First, Mr. Chairman, I'd like to submit for the record a number of items from experts and constitutional and international law that have affirmed a military commission as President Bush has proposed it, including a letter from the former attorney general of Alabama, Bill Baxley, who is a Democratic attorney general, who was a JAG officer in the National Guard for many years, who has tried cases before military tribunals and said he's probably the only person in Alabama that's read the entire Nuremberg transcript. And he believes this is a proper and appropriate way to proceed, as does Dean Doug Kinnock of Catholic University, Professor Ruth Wedgewood of Yale, a widely acknowledged international law expert, and General Michael Nardotti, a former top JAG officer in the army.

SEN. LEVIN: To be made part of the record.

SEN. SESSIONS: I would just like to -- maybe, Mr. Haynes, run through a few of the questions that I think get down to the nitty gritty. And you may not be prepared to answer them, but maybe you can give us some of the difficulties and tensions in answering these questions.

We've talked about habeas corpus. That is the right of a person who -- to bring himself before a court to find out if they've been charged with a crime and what it is, fundamentally, and that's the great writ. But, the Quirin case, as I understood it, said fundamentally that there would be a right to bring them forward to make sure that the trial was appropriately tried in the military commission. Is that basically what the court decided in Quirin?

MR. HAYNES: Yes sir. That's why they -- that's why they heard it, and they made the determination that it was appropriate.

SEN. SESSIONS: So, otherwise, if it was properly tried in the military tribunal, the Supreme Court approved the complete handling of that case in the executive branch, is that right?

MR. HAYNES: Yes sir, that's right.

SEN. SESSIONS: And I would just point out that Americans are so committed to civil liberties that we have some difficulties understanding there are other ways of doing justice. You do have an appellate process here. This order requires that a transcript of the case be made, the whole trial, is that correct?

MR. HAYNES: That's correct.

SEN. SESSIONS: And that an appeal be given to the secretary -- the president -- or, if he designates, the secretary of defense to review that record to make sure justice was done, is that correct?

MR. HAYNES: That is correct.

SEN. SESSIONS: And the secretary of defense could assign JAG officers and other officers as they choose to study and review every aspect of that if he so chose?

MR. HAYNES: Yes sir. The form of that remains to be seen, but that's correct.

SEN. SESSIONS: However he chose to do that. And it would just strike me that we're operating under the War Powers provision here, which is an executive branch function. And I would suggest that history should be the guide, and if it is the guide, Mr. Haynes, then any reviews and appeals would be within the executive branch, is that correct?

MR. HAYNES: That's correct, although, as we said earlier, there's no intent to preclude an accused from seeking a habeas corpus writ.

SEN. SESSIONS: Now, with regard to cross-examining of witnesses, you were rightly not too quick to say oh, of course, we're going to have cross-examination, full cross-examination of witnesses. I would just offer the point that the American justice system provides the greatest possible ability to cross-examine witnesses, far beyond that in most countries in the world. But, the point I would suggest to you is that if you have absolute right to do that, we'll have some serious problems -- such as, if the information that was critical to the conviction of a defendant came from a local citizens whose life might be at risk if it were known that he had provided information against the defendant, or if the information came from an electronic intercept, the normal procedure in federal courts is for the person who conducted the intercept to come in the court and explain how he did, how his equipment worked, and be subject to cross-examination. I don't think that's necessary. And to that extent, you could have some limitation on the traditional civil right of cross-examination, and rightly so, would you not?

MR. HAYNES: Yes sir. And the president's -- the president's order says that the standard for admission of evidence is that it have probative value to a reasonable person. now, the fact that some aspects may or may not be subject to cross-examination would go to the weight of the evidence. And the triers of fact and the judges, if you will, would have to factor that in, and counsel would be able to comment on that.

SEN. SESSIONS: And counsel would be able to comment on it, and argue the point, I agree.

You know, military justice does provide our soldiers and sailors, and airmen and marines, more protections than it does the terrorist or people who are committing war crimes against the United States. But, isn't it true that history has proven, and that the military is quite proud of its justice system, and it does rely on all participants in it being part of the military chain of command.

MR. HAYNES: Yes sir.

SEN. SESSIONS: So, it strikes some that believe in juries can know nothing, or have no connection whatsoever to a case, but in the military, every military man and woman is tried by fellow officers and enlisted people, in general of a higher rank than they, isn't that correct?

MR. HAYNES: That's correct.

SEN. SESSIONS: And I'm just real proud of the military justice system, Mr. Chairman. In the Army Reserves, sir, the few years as a JAG officer, although I never did attend the wonderful JAG school at the University of Virginia, it's one of the finest legal schools in the world, I think, and it turns out people who are committed to justice -- military men and women, officers particularly, are used to following orders and directives. And if they're told to follow this evidence and exclude this evidence, or admit this evidence, they will do so, and they will do so with integrity. It's done every day, and people should not believe that just because this is a military matter that they have any desire whatsoever to convict an innocent person. Why would a military person want to do that? I just don't -- I think we need to -- we have some on the extreme left and the extreme right that are so hostile to government that they don't believe -- that they are paranoid about any kind of a final decision-making process. And I think you have a good system here of allowing for appeals and in creating a system that will be just. And if not, the Congress and the world will judge you for it, and that's a high burden, I believe.

Do we still have some more time?

SEN. LEVIN: I think you're out of time. Thank you.

SEN. SESSIONS: Thank you.

SEN. LEVIN: Let me read the order now of recognition, assuming that they're here. Senator -- on the Democratic side -- Senators Akaka, Ben Nelson, Bill Nelson, Dayton, Bingaman, Cleland, Lieberman, Landrieu. On the Republican side, Senators Collins, McCain and Smith, in order of appearance. So, the next who is here would be Senator Ben Nelson.

SEN. BEN NELSON (D-NE): Thank you, Mr. Chairman. Thank you, Mr. Secretary, for coming back to appear before us. We're getting to know one another quite well from these exchanges.

Mr. Secretary, I know I speak as other have for the American people in thanking you for what you and the men and women in the military are doing, and demonstrating significant courage and commitment, and we wish you and all of them well in this endeavor, particularly in the days ahead.

I also realize that this is a question and answer period, but probably it's most enlightening for both of us to just simply -- for each of us to express our concerns rather than try to get specific answers back from you on these issues. It's premature, but at least it will give you an idea of what concerns we have as you move through this process, both you and Mr. Haynes, and I appreciate that opportunity, because you may be able to bundle together a process of appellate procedures, rules for proceeding, rules of evidence, certainly whether something ought to be public or private, what kind of appeal might be taken, and all of those elements of the tribunal system will be important. And I think you're hearing from each of us today our concerns about making sure that this system of justice isn't some weakened shadow of justice of the American system that for over 200 years has continued to evolve in a rule of law rather than rule of man. And I believe that that is very compelling, to be sure that what we do is appropriate under all the circumstances.

One of the most compelling arguments for the tribunal system, I think in this particular case, is the security issue of the individuals who are involved in the system, in the process -- being able to provide that security against an invisible foe, one who has already demonstrated a willingness to disregard human and innocent life. I think that certainly is important. The civilian process of working through that, I think, only raises more security issues. And so I truly believe that is one of the most compelling reasons for doing it -- not to weaken the justice system, not to get a diluted justice system for other individuals, but for security purposes.

I know that there will be another opportunity for you to come back, and at that point in time probably questions will be more in order rather than just simply giving you our thoughts, so I will withhold any questions, specific questions, rather than try to put you on the spot. One thought --

MR. WOLFOWITZ: Thoughts are helpful, believe me, and I think we've had some very useful ones given to us this morning.

SEN. BEN NELSON: Well, I think it is -- it isn't fair to you to keep asking you questions when you're saying, look, we haven't put this together. So, what I'd like to suggest is that as you think about whether the evidence is retained in private or whether it's public, that there may be instances, as with the Bin Laden video, that it's less about a particular trial or a particular tribunal's situation than it more is about the public and the desire of the public to know on the one hand, but really the importance of having the public more aware of what's going on with respect to somebody's guilt or innocence. And so I hope that you will think about that, because once you start the process, unless you've made -- fit in some sort of an exception, a waiver, an exception, something like that, we may commit ourselves to a process that we could regret in the long term, or violate our own principles of justice, fairness, and due process that we're seeking to protect.

I thank you very much for being here. I look forward to another opportunity. And perhaps if I have some questions along the way, I might submit them to Mr. Haynes.

MR. WOLFOWITZ: We'd appreciate that very much, Senator. And I appreciate your comments.

SEN. BEN NELSON: Thank you. Thank you, Mr. Chairman.

SEN. LEVIN: All set? Thank you. Senator Smith.

SEN. BOB SMITH (R-NH): Thank you very much, Mr. Chairman. Mr. Chairman, is it eight minutes, is that what --

SEN. LEVIN: Yes.

SEN. BOB SMITH: Good morning, Mr. Secretary and Mr. Haynes. It's great to see you here. And we join the chorus of those who have commended you for the outstanding job that you're doing and will continue to do in this effort to fight against these terrorist networks around the world, and specifically Afghanistan. We appreciate you coming up. There's been a lot of controversy on the -- since you announced -- the president announced the tribunal issue, and I think it's great that you came here and clarified a lot of questions.

I might just say, Mr. Haynes, I'm sure you've had a lot of reference -- documents referenced to you, but I would refer one to you in the Federal Lawyer, November-December, a senior judge of the Military Court of Appeals, the Honorable Robinson Everett, he has a very interesting article entitled "The Law of War: Military Tribunals and the War on Terrorism." It's a good overview which you may find helpful. I'll give you a copy of it. I ask unanimous consent that it be put in the record, Mr. Chairman.

SEN. LEVIN: It will be made part of the record.

SEN. SMITH: I wasn't here during the earlier part but I was watching it on television, and you did reference a number of tribunal precedents, Mr. Secretary. President Truman used one as well on the Bataan death march, as you know. I don't believe that one was mentioned, the Yamashita case.

They used it again trying German soldiers spying in China against America after the surrender of Germany. His decision was upheld by the Supreme Court in Johnson versus Eisentrager. It's interesting, every time it's been used, it's been upheld by the courts. So those who join this chorus of unconstitutionality, there really is very little, if any, evidence to support that charge at all.

Interestingly, one decision was written by Justice Jackson, who was the lead prosecutor in the war crimes tribunals in Nuremberg. So I think many have suggested the constitutional issue, although it sounds good about whether or not an alien terrorist should have constitutional rights, the truth is that's not what the Supreme Court had in mind.

On the contrary, in the Eisentrager case, the most recent opinion regarding military tribunals, the court held that there were "no instance," quote, where a court in this or any other country, where a writ of habeas corpus is known, has issued it on behalf of an alien enemy who at no relevant time and at no stage of his captivity has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, period. I apologize for my voice this morning.

Every time that I can find, the Supreme Court has upheld these tribunals. And I think that if -- I would not want to be in a position where bin Laden were to be let go because somebody didn't read him his Miranda rights. I don't think that would go over very well. And I certainly do not believe that his kind should be entitled to the benefit of civilian federal criminal procedure where good lawyers would have a lot of fun with that. I don't think we need that in America.

I just want to ask a couple of -- I would make one other point and then ask a couple of very specific questions, if you could answer them. It's interesting, in the chorus of critics, I remember when President Clinton signed a treaty to create the International Criminal Court, which, if Americans were held before it, it would deny them their basic rights -- trial by jury, number one, of their peers, protection from double jeopardy and the chance to confront one's accusers. As a matter of fact, Secretary Rumsfeld, I think, warned, quote, that "American leadership could be the first casualty of the ICC."

Did you have any input into that comment, Mr. Secretary, or could you clarify what he might have meant by that? If you didn't, that's fine.

MR. WOLFOWITZ: I don't -- I mean, I think it speaks for itself.

SEN. SMITH: It does speak for itself. Let me ask Mr. Haynes just a few -- in the -- the president, in this order, gives the secretary of Defense to promulgate the rules. And I'm not sure all of us know yet exactly how you're going to promulgate those rules specifically, and probably you don't either at this point, but let me just ask. If you could answer it, fine. If you can't, when you know, you could -- we'll hear it or you could provide it for the record.

Do you intend to hold all trials of alien terrorists who are not here in the United States exclusively outside the U.S. borders?

MR. HAYNES: Senator, there have been no decisions about that, either in the regulation, and indeed --

SEN. SMITH: No decision?

MR. HAYNES: That's correct.

SEN. SMITH: Okay. Do you support, in the civilian -- in 1995, I had a little language added to a piece of legislation that provided for a court, a judge to be set up to hear evidence on the deportation of those who may be involved in terrorist activities. The problem is the court's never been used because the intelligence community doesn't want to compromise sources and methods by providing the information to the terrorist or his attorney.

Why can't we come back, in the case of those, where we might have good information that they may be involved in a network but haven't committed a crime yet? Is there any feeling in the administration that we could reinstitute those courts and provide deportation to some of these people?

MR. HAYNES: I'm not familiar with that option, Senator. I'll look into it and get back to you.

SEN. SMITH: All right. What about having only -- now back on to the promulgation of the rules. Have you given any thought to only using uniformed military officers to practice before the tribunal?

MR. HAYNES: That's certainly one of the options, yes, sir.

SEN. SMITH: Clarifying in advance the rules of procedure by making applicable the manual for court-martial?

MR. HAYNES: Well, the president has made a finding in the order that it's not practicable to use the normal rules. Now, whether and to what extent the secretary of Defense may choose among those, we haven't decided, or create totally different ones.

SEN. SMITH: What about using judges from the military court of appeals, active or retired?

MR. HAYNES: That's an option.

SEN. SMITH: Can their privacy be protected in these trials in a way that they would avoid some of the problems that's already happened in the case of the judge who heard the one -- the terrorist case earlier in New York?

MR. HAYNES: I believe you're referring to the 1993 convictions.

SEN. SMITH: Yes.

MR. HAYNES: And that -- the security of the people who administer the process is certainly a concern and conceivably, along with other factors, might be a factor in deciding whether and to what extent proceedings might be held outside of the press.

SEN. SMITH: Last question. I'm assuming you're going to draw pretty heavily on the Nuremberg trials, and that's probably the best historical example we have. Is that correct?

MR. HAYNES: The Nuremberg trials were international trials, as opposed to United States tribunals. But the procedures there are certainly very helpful to build upon.

SEN. SMITH: That's what I'm talking about, procedures.

MR. HAYNES: Yes, sir.

SEN. SMITH: Well, thank you. Thank you very much, Mr. Chairman.

SEN. LEVIN: Thank you. Senator Bingaman.

SEN. JEFF BINGAMAN (D-NM): Thank you very much, Mr. Chairman. Thank you, Secretary Wolfowitz. I appreciate both of you being here. Let me put this in a very broad context. As I see it, what we're talking about here are really three stages. There is the stage at which the president makes his determination that someone is a foreign terrorist or a war criminal. And I think, under the order here, he makes determination that someone is engaged in acts of international terrorism. So that's the first stage.

The second stage is what you would be responsible for, and that would be conducting the full and fair trial of any such person who was previously determined by the president to have been engaged in acts of international terrorism. And then the third stage would be any appeal or any judicial review or any review by anybody of what occurred at the trial. So that's a very general way to think about it.

I'm concerned about the first stage, where the president -- in this order it says, "This term, individual subject to the order, should mean any individual who I determine from time to time in writing has engaged in acts of international terrorism," or abetted or aided in that. Do we have a definition of international terrorism? Is there any limit on the president's ability to make a determination in that regard?

MR. HAYNES: If I may, let me qualify a little bit about what you said at the outset. The president's order says that he doesn't necessarily make a determination at the outset that they are a terrorist.

SEN. BINGAMAN: No, it does. It says, "whom I determine from time to time in writing that, first, there's a reason to believe the individual, at the relevant times, is not a citizen, and secondly, that they've committed an act of international terrorism."

MR. HAYNES: That's correct. And the words I was beginning to focus on is that there is reason to believe. So, in other words, he is not making a determination at that point.

SEN. BINGAMAN: Oh, I see. So he just has to make a determination that there's reason to believe that.

MR. HAYNES: That's correct. And he also has to factor in not just the language that you quoted, but he also makes a separate determination that it is in the interest of the United States that such an individual will be subject to the order. So there are a couple of self-imposed standards that he --

SEN. BINGAMAN: But is there any definition of what we're looking at when we talk about an act of international terrorism? For example, when Timothy McVeigh blew up the courthouse there in Oklahoma, if he had been a foreign national, legally resident in this country, would he be someone who had engaged in an act of international terrorism, in your opinion?

MR. HAYNES: Well, you make an important qualification. The president's order does not include U.S. citizens. So when you make that qualification --

SEN. BINGAMAN: Yeah, I understand. If he had been a foreign national, would that be a case that would be appropriate for a military tribunal?

MR. HAYNES: It might be, depending on all the facts present at the time, if the president made the determination that there was reason to believe that -- again, in looking at the order, it's not just international terrorism. It's also that it is or was a member of the organization known as al Qaeda has engaged in, aided or abetted, and so forth, or has knowingly harbored. Now, those are in the alternative.

SEN. BINGAMAN: Right. So the question would be, is blowing up the federal building in Oklahoma an act of international terrorism? And you're saying it may well be.

MR. HAYNES: You have changed the facts so significantly already, let me play that out. One would think that the president would consider whether that had some link outside the country to make it international.

SEN. BINGAMAN: So the fact that the person was foreign would not necessarily make it international.

MR. HAYNES: That is the president's determination to make.

SEN. BINGAMAN: But there's no limit on the ability of the president to make that. He is well within his rights, as you see it, to make that determination that McVeigh should be tried in a criminal -- in a military tribunal.

MR. HAYNES: I'm very uncomfortable about talking about an individual who is a U.S. citizen, who is specifically not subject to the order. So using the name --

SEN. BINGAMAN: Well, let me ask about another one. What about Ted Kaczynski?

MR. HAYNES: An American citizen.

SEN. BINGAMAN: Yeah. If he were foreign, if he had been a foreign national, do you see any problem with the president making a determination that his activities in mailing these explosive devices to people was an act of international terrorism?

MR. HAYNES: If you're positing a non-U.S. citizen engaged in international terrorism and whether those acts had some nexus to something outside the country, I think, would be an important factor for the president to consider. You haven't put that in your hypothetical, so if the acts were purely within the United States --

SEN. BINGAMAN: So you say there's got to be some nexus to something outside the country in order for this to apply.

MR. HAYNES: Well, in order for it to be international terrorism, one would think that there would have to be something outside the United States, some means to make the determination that this is international in character.

SEN. BINGAMAN: Usually military tribunals, as I understand it, have been invoked and used when you are, in fact, trying people who are engaged in some kind of military action against our country. Is that a fair statement? One of your statements here, Mr. Wolfowitz, is that it is well-established that a foreign national who is engaged in armed conflict against the United States has no constitutional claim to the rights and procedures that would apply. I guess the question is, is that what we're talking about here, people who are engaged in armed conflict with the United States?

MR. HAYNES: It is the -- the purpose of this order is to try war crimes.

SEN. BINGAMAN: War crimes meaning the person who is going to be subject to this needs to be engaged in some kind of a war effort against our country, not just a freelance terrorist who has a point of view that is inimical to our general point of view or our policies or our way of government or whatever.

MR. HAYNES: I think that is a fair way to look at it. But I also want to reiterate that, as written, the president's order requires a specific written individual determination by him which recognizes the fact that these are -- these cases will depend on all the facts and circumstances. So it's a -- (I don't mean?) to generalize too much beyond what's in the order, but --

SEN. BINGAMAN: Is there going to be any kind of a threshold or set of procedures that the president would adhere to in making his determination? To what extent is his determination in any way reviewable? I guess there's no review of it under the order that has been issued. I mean, if, for example, someone were to be turned over or determined by the president to be subject to this order and he determines that there is evidence to indicate that you're involved in international terrorism, there's no way to dispute that. I mean, there's no way to say, "I deserve to be tried in a federal court."

MR. HAYNES: Well, there will be a trial.

SEN. BINGAMAN: Yeah, but, I mean, prior to actually having a trial in the criminal court or in the military court, there's no way to say, "I deserve to be tried in a regular Article III court under the Constitution because I do not meet the criteria that would justify the president putting me in a whole different system."

MR. HAYNES: That's correct.

SEN. BINGAMAN: So there's no review.

MR. WOLFOWITZ: Senator, it does seem to me that, I mean, as the order makes clear, that the first criterion is that the president has reason to believe that the individual is or was a member of the organization known as al Qaeda. And that is, I think, clearly where the focus is.

And if one takes the sort of -- one of your purely hypothetical cases of somebody who simply is a foreign national, if there's none of the reasons that would apply to preserving the security of the trial, no connections to foreign terrorist groups that would threaten the safety of judges and jurors, no reason to have classified evidence collected abroad by intelligence agencies, none of the reasons that we've explained for the reason of the order -- I mean, we're not here to prejudge or take away the president's discretion, but that kind of case, it seems to me, starts to define itself into the regular civilian court system. And we have a perfectly effective civilian court system for trying people guilty of acts of terrorism, including Mr. Moussaoui, who has even clear links to al Qaeda.

So, I mean -- maybe I'm making a mistake in getting into legal issues -- there are a lot of hypotheticals, and we have to be very careful. And the president does have a lot of authority, but it seems to me the Quiren case was precisely a case of where the courts reviewed whether that authority was properly exercised, and it was judged that it was.

I think someone with your -- I've forgotten the name of the Unabomber -- the Unabomber, but with foreign nationality, would have, I think, lots of ways to make sure that they were properly put into the military tribunal system if they were.

SEN. BINGAMAN: Were properly put in the military tribunal system or properly put into the federal court system?

MR. WOLFOWITZ: Either one.

SEN. BINGAMAN: So you think they would have a right to be tried in the federal court system.

MR. WOLFOWITZ: No, I didn't say that. I think they would have an opportunity, because they're here in the United States, to appeal for habeas corpus.

SEN. BINGAMAN: My time is up, Mr. Chairman.

SEN. LEVIN: Thank you very much. Senator Lieberman.

SEN. LIEBERMAN: Thank you, Mr. Chairman. Thanks, Secretary Wolfowitz and Mr. Haynes. I appreciate the discussion. It's been very helpful. I have -- it strikes me that part of what we're all wrestling with here is that we're dealing with a matter of first impression for most of us. We've not been involved in the United States constituting military tribunals for war crimes, at least not in my direct involvement, for some period of time.

We've witnessed in recent times international war crimes tribunals against -- which have tried people involved in the Rwanda genocide and the Balkans as well. So we are working our way through this. And I'm doing the same myself.

The other problem here is that we are a country that prides itself on adhering to the rule of law, and yet we are, for all intents and purposes, at war. And one of the distinctions, I think, that we are trying to make is how appropriately as a country, where we value the rule of law, do we handle those who we capture as part of this war? In other words, for some time there's been criticism that we've been treating terrorism too much as a legal violation instead of what it was, and became clear it was, on September 11th as an act of war.

In the reading and thinking that I've done about this, it certainly does seem clear to me that the president has the right to constitute military tribunals for violations of the laws of war.

And perhaps because this is a matter of first impression, I think a lot of people have been imagining the worst as they consider how these military tribunals might be used. It is also true, probably, that they've been imagining the worst because the specific wording of the military order is in some senses vague and requires the kind of guidelines that you're now working on and the reassurances that people are looking for. It also the -- the order was also issued in the context of other actions that have alarmed people -- the several hundred people detained, the broad and mass questioning of Arab- Americans or Muslim-Americans.

But it does seem to me that today you have offered what I was hoping for, and I hope the guidelines provide also, which is reassurance as to the way this administration is going to employ military tribunals as part of our war against terrorism -- rights of appeal, rights of habeas corpus, full and fair trial, and what that means. And so I appreciate that.

I want to talk to you about the indictment yesterday Zacarias Moussaoui, of this being the first criminal charge filed by the United States government directly related to the attacks against us on September 11th. I'm going to share with you first impression, because I've just begun to think about it this morning, and maybe you here or others will alter my impression. But, my first impression is that the actions taken against Mr. Moussaoui go beyond reassurance, and they are actually quite troubling, and to me, surprising, because we have taken here a non-citizen of the United States -- not even a lawful permanent resident of the United States, a French citizen of Moroccan decent -- who according to the charges filed against him, and I'll quote very briefly, is accused of conspiring with Osama Bin Laden and al Qaeda to murder thousands of innocent people in New York, Virginia and Pennsylvania on September 11th. This is not some foot soldier in al Qaeda hiding in a cave over in Afghanistan. This is a guy who came to the United States, from what the indictment that I read in the papers this morning, who conspired with the other 19, and allegedly directly with Bin Laden at some point, to carry out these acts that killed thousands of our fellow Americans, and he is a non-citizen, not entitled to the protections of the federal district courts of the United States of America.

So, I'm troubled by the precedent that this sets as to what the administration will do regarding those who have violated the laws of war. I mean, what greater violation of the laws of war could there be than to have been a co-conspirator in the attacks that resulted in the death of four thousand Americans here on our soil? His direct involvement in that being constrained only by the fact that he was apprehended because people at the flight simulation school he was training at, presumably to carry out one of the attacks, reported him. If we will not try Zacarias Moussaoui before a military tribunal -- a non-citizen alleged to be a co-conspirator in the attacks against -- that killed four thousand Americans -- who will we try in a military tribunal? And what standard does this set for what will be done? I mean, surely it can't be just the happenstance that he was apprehended in the United States of America as opposed to in Afghanistan or somewhere else in the world.

And I must say, Secretary Wolfowitz, in the three points -- or is it four -- that you mentioned in your opening statement as to why military commissions should be used, we can better protect civilian judges, jurors and courts from terrorist threats and assure the security of the trials itself. Federal rules of evidence often prevent the introduction of valid factual evidence for public policy reasons that have no application in the trial of a foreign terrorist. Third, military commissions can allow the use of classified information without endangering sources and methods. Every one of those, I would argue, on first impression this morning, argues for Mr. Moussaoui to be brought before a military tribunal.

So, I find it -- I find this a troubling decision, and I wonder if you could reassure me. And this guy -- to use the parlance of the regular criminal courts of the United States -- is a big fish. And I fear that the decision to try him in the federal district courts of the United States, with all the rights of evidence, and rules of evidence, and rights of due process -- may let this big fish get away. The other 19 criminals who carried out these acts are dead. We happen to have grabbed this guy. And, you know, I don't want the rules of hearsay to be applied to this case -- he doesn't deserve the rules of hearsay to be applied to him, or any of the other rights that citizens of the United States have when accused of a crime.

So, I'm troubled. And I wonder -- I wonder -- I suppose I have to ask the direct question, whether the Department of Defense was consulted before the decision was made by the Justice Department to try Zacarias Moussaoui in the federal district courts?

MR. WOLFOWITZ: We were not, Senator, and so I probably should be careful not to speculate about the considerations. But it does seem to me that presumably the decision by the Justice Department to indict Mr. Moussaoui in a civil court is an indication that they believe that they did not have, for example, the problem that I mentioned of evidence, important evidence that might not be admitted under normal rules of procedure, or the problem of relying on classified evidence, and that they couldn't properly convict this man in a civilian court.

Remember, the goal here is -- the goal of these military tribunals is to be able to have full and fair trials and defend the United States. And I think there's more than one instrument for achieving that. But the president has made it clear there may be circumstances in which this one is necessary. I'm -- I wouldn't want to go further --

SEN. LIEBERMAN: I suppose I'm relieved to hear that the Department of Defense was not involved in this decision. As I said, I think it goes beyond reassuring us and it takes an enormous risk with the only person we have in our hands right now who, in my opinion, based on the evidence I've read, was directly involved in preparing to carry out the attacks of September 11th. And I think it takes a large risk to bring him before the district court, with all the rights that he would have there, that he doesn't deserve, frankly.

Mr. Haynes, I'm sorry, did you --

MR. HAYNES: Well, Senator, we don't know everything the Department of Justice knows. I actually think that you might draw some comfort from the fact that this may be an illustration of how carefully the president intends to employ this tool that he is creating in this military order. The man that you are describing was apprehended before September 11th. He is in the criminal justice system, in the Article 3 criminal justice system. Unless the president makes a specific written determination that he should be subject to the order under those terms and that it is in the national interest or in the interest of the United States to provide him to the secretary of defense, then he should stay there. But we -- we are unable to comment on what evidence they may have.

SEN. LIEBERMAN: My time is up. I thank you both.

SEN. LEVIN: We have to conclude now under the Senate rules. There has been a motion filed, and we have no alternative but to adjourn this hearing. I want to just conclude though with a question -- a follow-up to Senator Lieberman's question. Was the secretary of defense, Defense Department, consulted on the drafting of the presidential order prior to its being issued?

MR. WOLFOWITZ: Yes, we were.

SEN. LEVIN: You were involved in the drafting?

MR. WOLFOWITZ: We were consulted on it. I'm not -- were we involved in it?

MR. HAYNES: We were consulted, but we -- I don't think we can comment on what advice we gave.

SEN. LEVIN: I'm not asking for that. Did you give advice on the order? I'm not asking what it was, I'm just asking whether you gave advice?

MR. HAYNES: Our views were -- our views were consulted.

SEN. LEVIN: Thank you. I -- Senator Lieberman has raised an important point on Mr. Moussaoui. I must say I am not reassured that they weren't consulted. It's hard to imagine that in a matter that fits the military tribunal order the way the Moussaoui case appears to fit it, that you weren't consulted, because then you will be applying these criteria in other cases which are very similar or maybe the same as Moussaoui's case. So, I'm kind of amazed that you weren't consulted.

SEN. LIEBERMAN: Senator Levin, if I may, I accept your amendment. I guess I was speaking more directly to Mr. Wolfowitz, who I have such high regard for. And I didn't want to believe that he was consulted before this decision was made, but you are absolutely right, it's wrong not to have consulted the Department of Defense because we're at war. And Moussaoui is a war criminal. He was a soldier who attacked American civilians. And therefore, I hope you will be -- the Department of Defense will be consulted in each and every future decision of this kind that's made.

SEN. LEVIN: Mr. Wolfowitz, when I left here to go to vote, I was asked by many members of the press whether the decision has been made to withdraw from the ABM Treaty. That was the question I was asked most often by most members of the press. Has the decision been made to withdraw from the ABM Treaty?

MR. WOLFOWITZ: Senator, I think the president and the secretary of state and secretary of defense have made it clear --

SEN. LEVIN: Has a decision been made to withdraw?

MR. WOLFOWITZ: As far as I know, Senator, no final decision has been made yet.

SEN. LEVIN: Has not been?

MR. WOLFOWITZ: As far as I know, no final decision has been made yet.

SEN. LEVIN: Under the rules of the Senate, we are required to adjourn. We will not -- we will come back again, because the hearing is not completed, but we have no alternative, under our rules now, but to stop exactly where we are. And so the hearing will stand in recess.

END.

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